Sundance: Expert says Disney 'Escape' case would be 'pretty weak'

By Steven Zeitchik

A scene from the Disney-set film 'Escape from Tomorrow' (Sundance Film Festival )

PARK CITY, UTAH -- How Disney will respond to an unauthorized film made in its theme parks has been a question hovering over the Sundance Film Festival since the movie premiered to intense media interest Friday night.

But one legal expert who's seen the film, titled "Escape From Tomorrow," says he believes the conglomerate doesn't have a very strong leg to stand on.

"I think on both copyright and trademark fronts their case would be pretty weak," Tim Wu, a law professor at Columbia University who watched the movie at a screening last weekend, told The Times.

"It's a film that falls pretty squarely in the territory of fair use, which addresses copyright," added Wu, who specializes in intellectual-property issues. "And to establish trademark infringement they'd have to prove that a reasonable person would think Disney is endorsing the movie, and I think they'd have a hard time doing that."

Randy Moore's film, which premiered Friday night in Park City, is a black-and-white surrealist drama that takes place in and around numerous Disney landmarks. Moore shot the scenes on the sly using a tiny handheld camera and a guerrilla crew. The movie portrays an unhappy and possibly disturbed man taking his family through the park and features a series of dark behaviors, in what many critics have read as an indictment of Disney culture.

Though Disney could choose to bog down people involved with the film in expensive lawsuits, Wu said the company would be unlikely to win such a suit. He pointed to the landmark 1999 case of Mattel vs. Walking Mountain Prods., in which the toy giant sued artist Tom Forsythe for photographs that depicted Barbie being attacked with kitchen appliances. Mattel wound up losing the case and had to pay Forsythe nearly $2 million in penalties when a judge for the 9th U.S. Circuit Court ruled that Forsythe's art was protected under fair-use law.

(Fair use often turns on whether the user is making a comment on the copyrighted material by transforming it in some way. So while a romantic comedy that showed unauthorized Disney images to gloss up its story might be in violation, a more politically minded film that employed Disney copyrights to comment on the company, as Moore appears to be doing, would have a lot of legal latitude.)

Moore and his cast and crew could be guilty of trespassing because they violated the terms of the passes sold to them by Disney, Wu said, but that probably would only be a misdemeanor and does not tend to result in large punitive damages.

The film has created a stir at Sundance for its filmmaking bravado. But the specter of a legal fight with Disney has kept potential distributors at bay, according to one person familiar with the negotiations who was not authorized to speak about them publicly.

Studios looking to make a deal could insist on a a clause indemnifying them against any lawsuits, but that might not be enough to quell their concern, especially given the possibility of an injunction.

The sales agent representing the film told The Times that he'd hope the company would not push back because the movie channeled a spirit of imagination, "and Walt Disney was all about imagination."

As the buzz has grown around "Escape," various agents have shown up at screenings with an eye toward signing Moore, but the eccentric filmmaker has not committed to a Hollywood agency.

The film has also created a sense of intrigue at Sundance over how Disney might respond. At a recent screening a man confronted Moore about how he obtained certain images in the film, prompting speculation in the theater that the man had been dispatched by Disney. He vanished from the theater before anyone could establish his identity.